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2012 DIGILAW 539 (MAD)

K. Shanmugasundaram v. Commissioner

2012-02-02

VINOD K.SHARMA

body2012
Judgment :- 1 The petitioner has approached this Court with the prayer for issuance of writ in the nature of Certiorari, to quash the order dated 27.02.2001 promoting the respondent No.2 as Skilled Assistant Grade I, without considering the case of the petitioner. 2 The application filed by the petitioner was admitted by the Tamil Nadu Administrative Tribunal in the year 2001. Till date, no counter has been filed by the respondents, therefore, the averments made in the application go unrebutted. 3 The petitioner was appointed as Skilled Assistant Grade II on 04.12.1990 in the Salem Municipality which was subsequently, upgraded as Corporation in the year 1994. On upgradation of Municipality to municipal Corporation, Service Rules governing the service conditions of the employees were framed in the year 1996. All the technical posts in the Engineering and Water Supply Department in the Corporation were classified under three categories i.e.:- (a) Technical Assistant (b) Skilled Assistant (Grade I) (c) Skilled Assistant (Grade II) The petitioner and the respondent No.2 fall under the category of Skilled Assistant, Grade II (Pay Scale: Rs.975-1500). 4 The date of appointment of the second respondent as Skilled Assistant, Grade II is 08.08.1994, i.e. four years junior to the petitioner. 5 The case set up by the petitioner is that inspite of the fact that the respondent No.2 was junior to the petitioner, he was promoted to the post of Skilled Assistant Grade I, without considering the case of the petitioner. The petitioner therefore challenged the impugned order of promotion, on the ground that the impugned order is discriminatory thus, violative of Article 14 and 16 of the Constitution of India. 6 I find force in the contention of the learned counsel for the petitioner that junior cannot be promoted without considering the case of the senior. The impugned order therefore, is on the face of it arbitrary and discriminatory, thus hit by Article 14 of the Constitution of India, therefore, cannot be sustained. 7 Keeping in view of the fact that the respondent No.2 has been holding the post of Skilled Assistant, Grade II since 2001, it may not be appropriate at this stage to set aside his promotion. 7 Keeping in view of the fact that the respondent No.2 has been holding the post of Skilled Assistant, Grade II since 2001, it may not be appropriate at this stage to set aside his promotion. Therefore, in the interest of justice, the respondents are directed to consider the case of the petitioner for promotion to the post of Skilled Assistant, Grade I, from the date of his junior, the respondent No.2 was promoted, if the petitioner is eligible for promotion, i.e. w.e.f. 27.02.2001 with all consequential benefits. 8 It is made clear that claim of the petitioner cannot be rejected on the ground of want of vacancy, as in case of non availability of vacancy, the petitioner shall be promoted to the post of Skilled Assistant, Grade II, by setting aside the promotion of the respondent No.2. 9 The needful is to be done within a period of one month of the receipt of certified copy of this order. 10 The writ petition is allowed in the above terms. No costs.